Table of Contents
Criminal Offence Act 2074 has Seven Chapters and 51 Sections. It has Provisioned for the purpose of Sentencing, the Types of Sentencing, the conditions for Sentencing a Child, the suspension of sentencing and the remission of Sentencing in Nepal.
General Principles of Criminal Offence Act
Application of Penal Code and Criminal Procedure Code
This Act must be implemented through the Principles and Laws outlined in the National Penal and Criminal Procedure Code. The Terminologies stated are to maintain their respective meanings
Imposition of Lesser Sentence
If an offense, at the time of sentencing, carries a lesser penalty than it did at the time of its commission, the sentence shall be determined according to the reduced penalty.
Determination of Sentence after Conviction
As stated in the Criminal Offence Act, a court can establish a sentence for an Individual only after convicting them for a particular offense in accordance with the law. The Sentence must be determined within thirty of the conviction.
Conduct Separate Hearing
A separate hearing shall be held to determine a sentence for an offender. However, no separate hearing is required when sentencing an offender for an offense punishable by up to three years of imprisonment or a fine of up to thirty thousand rupees.
Open Bench Hearing
For offenses not required by law to be heard in-camera, sentencing must occur in Open Court in Nepal.
Execution of Multiple Sentences
When determining a sentence for an offender who has committed multiple offenses in a single incident, each offense will be treated as a separate act, and separate sentences will be determined for each.
If multiple acts constitute a single offense, and one of those acts constitutes a separate offense, the sentence for the offense carrying the highest penalty will be imposed.
If an act constitutes separate offenses under different laws, the sentence provided by the law that prescribes the most severe penalty will be executed.
Order to Prepare Pre-Sentence Report
When an offense is punishable by imprisonment for more than three years or a fine exceeding thirty thousand rupees, the court may order a probation officer or parole officer to prepare a pre-sentence report regarding the offender.
Purposes of Sentencing
The following are the purposes of sentencing in Nepal:
Factors in Sentence Determination
The Court must take into account these factors before determining the sentence:
(a) Punishment should match the crime's seriousness and the offender's responsibility.
(b) The sentence should not be excessively harsh.
(c) Sentences should be similar to those imposed on other offenders for similar crimes.
(d) When dealing with an offender already serving a sentence for one crime, the overall sentence should not be unfair.
Grounds for Sentence Determination
The Grounds for sentencing in Nepal are as follows:
- (a) Deterring the offender and others from committing the same offense.
- (b) Protecting society.
- (c) Delivering justice and potentially compensating the victim.
- (d) Assisting the offender's rehabilitation.
- (e) Isolating the offender.
- (f) Making the offender acknowledge the harm done and feel remorse.
- (g) Denouncing illegal conduct.
The following are the methods of Sentencing in Nepal:
Sentencing a Child
Children under the age of Sixteen shouldn’t be imprisoned except for Severe Crimes and Repeated Crimes. The following are the things to be considered while sentencing a child:
(a) Consider the child's best interests.
(b) Evaluate the crime's seriousness and the child's responsibility.
(c) Examine the child's circumstances.
(d) Consider compensation to the victim.
(e) Observe the child's remorse.
(f) Assess the child's desire for a lawful life.
Details to be included in the Sentencing Decisions
The following are the details that must be included in the Sentencing decision in Nepal:
(a) The reasoning behind the sentence.
(b) For fines: the amount, due date, installment options, and potential imprisonment for non-payment.
(c) For imprisonment: the duration, incarceration date, and release date.
(d) For community service orders: type, duration, terms, and penalties for non-compliance.
(e) For reform homes or rehabilitation centers: duration, conditions, and penalties for non-compliance.
(f) Determination of parole eligibility.
(g) If imprisonment can be suspended, the suspension duration.
(h) If compensation is required: amount, payment schedule, and penalties for non-payment.
(i) For conditional suspension of a child's sentence: penalties for violating conditions.
(j) Any other relevant details as deemed appropriate by the court.
Provisions of Fine
The Sentence of the Fine must be determined by assessing the maximum and minimum amount of the fine and the offense committed. If the fines are imposed, the offenders must pay the fine immediately. For Multiple Individuals, it should be according to the involvement in the Crime.
Determination of Fine
The Following Matters must be taken into account while determining Fines in Nepal:
(a) The financial status and income of the offender.
(b) The financial harm caused to others by the offender's offense.
(c) Any benefits received by the offender or their family due to the offense.
(d) The impact of the fine on the offender's family that they need to support.
(e) The amount of compensation owed to the victim.
(f) Any potential liability that the government may have due to non-payment of the fine.
(g) If the offender is a corporation, the financial status and transactions of the corporation.
(h) If a contribution to a victim relief fund is required, that amount.
Community Service
If a person is sentenced to a prison term not exceeding Six Months along with the nature of the offense, conduct, and age of the person, the court can order them to perform community service.
It can include activities like serving at hospitals, orphanages, environmental protection, teaching at schools, working at charitable organizations, etc.
The Service must be equal to the Prison Term or the remaining Prison Term and the court must determine the daily work hours during the Community Service.
Provisions of Imprisonment
An offender can be sentenced to imprisonment if a fine or community service is not considered sufficient.
Moreover, in cases of a first-time offender who is sentenced to less than one year in Prison and it can be inappropriate to imprison them, the court can suspend the sentence for up to three years.
Sentence not to be suspended
The Sentences in Nepal cannot be suspended if the offender committed the following offenses:
Work during Suspension
The offender can be required to do the following during the period of Suspension:
Conditions for Home/Rehabilitation
The Conditions for Reform Home in Nepal are:
Not to be given Parole
In the following conditions, the offender cannot be placed on Parole:
Socialization
A prison can release an offender whose imprisonment is less than a term of one year, is serving the sentence with good conduct on the following:
Conditions for Leaving Prison
A Prisoner can be permitted to go out of the prison with necessary security for the following reasons:
Remission of Imprisonment
If an offender has served 3/4th of the Sentence of Imprisonment, and reformed his/her conduct in Prison, then, the prison can make remission from the sentence of the imprisonment. The Following are the exceptions:
Provision of Compensation
Section 41 of the Criminal Offence Act has provision for payment of compensation in Nepal. If any injury is caused to the victim's body, life, property, or reputation due to an offense, the court shall order the offender to pay reasonable compensation to the victim for the injury.
The Compensation must include medical expenses for injuries and funeral expenses. It also includes restitution for the damages caused to the Victim’s Property and compensation must be determined based on the Value of the Property at the time of Damage.
However, if an offender doesn’t pay the required amount within the period specified, the compensation shall be ordered to be paid to the Victim.
If the offender required to pay in such a manner fails, they need to be imprisoned by converting the amount of compensation into imprisonment at the rate of NPR 300 a Day. However, it cannot exceed 4 years.
The points of consideration for the amount of compensation are:
- (a) The crime's seriousness and the offender's responsibility.
- (b) The circumstances of the offense.
- (c) Factors that make the crime worse or better.
- (d) The offender's behavior and past.
- (e) The sentencing purposes.
- (a) Imprisonment for severe crimes.
- (b) Focusing on rehabilitating children.
- (c) Doubling the sentence for repeat offenders.
- (d) Imprisonment for dangerous offenders.
- (e) Increasing the sentence by 1.5 times for government officials who abuse their positions.
- (a) Murder - Taking someone's life.
- (b) Rape - Forcing someone into sexual acts.
- (c) Human Trafficking - Illegally moving people for exploitation.
- (d) Weapons and Explosives Offenses - Wrongfully using dangerous weapons or explosives.
- (e) Corruption - Abusing power for personal gain.
- (f) Kidnapping and Hostage-Taking - Abducting people or holding them against their will.
- (g) Robbery - Stealing from someone using force or threat.
- (h) Counterfeiting - Making fake money or government stamps.
- (i) Foreign Exchange Violations - Breaking rules related to money exchange.
- (j) Drug Trafficking and Distribution - Illegally selling or moving drugs.
- (k) Crimes Against Ancient Monuments - Offenses related to damaging historical sites.
- (l) Offenses Related to Forest and Wildlife - Wrongful actions against nature and animals.
- (m) Organized Crime- Criminal activities carried out by groups.
- (n) Money Laundering - Making illegal money appear legal.
- (o) Crimes of Torture or Inhumane Treatment - Harming people severely or treating them very badly.
- (p) Crimes Against Humanity - Serious offenses that harm many people.
- (a) To do a public work for free.
- (b) To assist in any work of the victim of the offense.
- (c) To refrain from doing any act or conduct outlined in such order.
- (d) To refrain from moving outside of his or her residence or any particular place.
- (e) To refrain from committing any offense during the period of sentence or within three years of the service of such sentence.
- (f) To remain within any place specified by the court.
- (g) To remain in a treatment and rehabilitation center.
- (h) To refrain from meeting a particular person.
- The offenders must have a sentence of imprisonment of two years or less
- The Terms and Conditions of the Reform Home must be as specified by the Probation and Parole Board
- During the period of Reform in the Reform Home, the offender must comply with the terms and conditions of the Probation and Parole Board.
- The Individual must serve full-time in Prison because of the failure to reform, non-compliance, or committing an imprisonable offense.
- The Conditions for the Sentence to be converted to a Rehabilitation Center in Nepal are:
- The Offender must have been convicted of drug use, suffering from physical or mental issues, or cases of Similar Nature
- The Terms and conditions for Rehabilitation must be laid down by a probation officer
- During the period of Rehabilitation, the offender must comply with the terms and conditions.
- If the Individual fails to reform, doesn’t comply, or commits an imprisonable offense, they must serve a full term in Prison.
- Sentenced to life imprisonment.
- Convicted of corruption.
- Convicted of rape.
- Convicted of human trafficking and transportation.
- Convicted of organized crime.
- Convicted of money laundering.
- Convicted of an offense related to torture, cruelty, inhumanity, or degrading treatment.
- Convicted of a crime against humanity.
- Convicted of an offense related to crimes against the state.
- Family reunion
- Establishment of social and cultural relations
- Social assimilation and rehabilitation
- Carrying on a business or employment
- Taking skill or employment-oriented training
- Visiting a close relative who has fallen ill
- Performing crematory or obsequies rites for a deceased relative, with the condition to return to prison on the specified day.
- Sentenced to life imprisonment.
- Offenders convicted of rape.
- Offenders convicted of corruption.
- Offenders convicted of human trafficking and transportation.
- Offenders convicted of taking hostages and kidnapping.
- Offenders convicted of organized crime.
- Offenders convicted of money laundering.
- Offenders convicted of offenses related to torture or cruel, inhumane, or degrading treatment.
- Offenders convicted of crimes against humanity.
- Physical, bodily, mental, and emotional injuries to the victim.
- In case of the victim's death, the injury to their heir.
- The offender's financial situation.
- The condition of the victim and their dependents.
- Any other relevant matters as deemed appropriate by the court.
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